Criminal Procedure Law [“CPL”] 100.15

2010 NY Slip Op 51103
The People of the State of New York
v.
Phillip Johnson, Defendant.
2009QN068173
Criminal Court Of The City Of New York
Queens County
Decided on June 24, 2010
Attorney for defendant: Michael Horn Queens Law Associates
Attorney for the People: ADA Jonathan Selkowe
Elisa S. Koenderman, J.

The criminal defendant, Phillip Johnson, is charged with Endangering the Welfare of a Child, Penal Law [“PL”] 260.10(1). The defendant has moved in an omnibus motion for dismissal for facial insufficiency. Because the factual allegations that the defendant grabbed his three-year-old son by the arm and attempted to pull him into the bathroom are insufficient to establish that the defendant knowingly acted in a manner likely to be injurious to the physical, mental or moral welfare of a child, the defendant’s motion is granted.
FACIAL SUFFICIENCY

In order to be facially sufficient, an information must substantially conform to the formal requirements of Criminal Procedure Law [“CPL”] 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant’s commission thereof (CPL 100.15[3] & 100.40[1]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]). The complete failure to plead an element of a crime is a nonwaivable jurisdictional defect (see People v Casey, 95 NY2d 354, 356 [2000]; Alejandro, 70 NY2d at 137-138).

Reasonable cause to believe that the criminal defendant committed the offense charged exists when “evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince
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a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” (CPL § 70.10[2]). The requirement of nonhearsay allegations has been described as a “much more demanding standard” than a showing of reasonable cause alone (Alejandro, 70 NY2d at 138, quoting1966 Report of Temp Commn on Revision of Penal Law and Crim Code, Staff Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt (People v Henderson, 92 NY2d 677, 680 [1999]; People v Hyde, 302 AD2d 101 [1st Dept 2003]). Thus, “[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the sex crime and the factual basis therefor be sufficiently alleged” (People v Sylla, 7 Misc 3d 8, 10 [2d Dept 2005]). Finally, where the factual allegations contained in an information “give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading” (People v Casey, 95 NY2d 354, 360 [2000]; see also People v Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]; People v Shea, 68 Misc 2d 271, 272 [1971]; People v Scott, 8 Misc 3d 428, 429 [2005]). Ultimately, “the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged” (People v Barona, 19 Misc 3d 1122[A], 1, 2008 NY Slip Op 50814[U] [Crim Ct, NY County 2008]).

The complaint alleges that Doreen Johnson informed Police Officer John Vitale that on or about December 12, 2009 between 10:00 p.m. and 10:55 p.m. inside of 146-04 Sutter Avenue, she observed the defendant Phillip Johnson grab her three-year-old son Zyhare Johnson by the arm and “[attempt] to pull him into the bathroom, causing substantial pain to [Zyhare Johnson’s] arm.” The complaint further alleges that thereafter Zyhare Johnson “was removed to a local Queens hospital for said injuries.”

The criminal defendant claims that these factual allegations are insufficient to demonstrate that he knowingly acted in a manner likely to be injurious to the child’s physical, mental or moral welfare. Moreover, the defendant asserts that the allegation that the child suffered “substantial pain” is uncorroborated hearsay and does not indicate that the child was injured as a result of his actions.

The People counter that the non-hearsay allegations of the complaint establish that the defendant “grab[bed] a three-year-old child by the arm, and drag[ed] him into a bathroom” and that “the child was then removed to a local hospital to be checked for injuries.” Further, the People contend that although they are not required to allege that the defendant caused physical injury to the child, the factual allegations establish that Zyhare Johnson “sustained physical injury’ as that term is defined in the Penal Law… in that the actions of the criminal defendant caused [Zyhare Johnson] substantial pain.” Accordingly, the People claim that “collectively [the factual allegations of the complaint] disclose facts and circumstances from which a reasonable person can conclude that force was used by the defendant against a three-year-old child, and whenever force is used against a young child, injury is likely to occur.”

Under Penal Law 260.10(1), “a person is guilty of endangering the welfare of a
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child when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health.”
The aim of the statute is to protect “the physical health, morals and well-being of children….” (People v Bergerson, 17 NY2d 398, 401 [1966]). The statute is broad in scope and is not limited to protection against the perpetration of sex crime offenses upon children but in fact extends “to other dangers as well” (id.; see also People v Cruz, 152 Misc 2d 436, 438-439 [1991]).

A defendant need not commit an affirmative act directed at a child (see People v Hitchcock, 98 NY2d 586, 591 [2002]; People v Johnson, 95 NY2d 368, 371-372 [2002]) nor cause actual harm to a child (see Johnson, 95 NY2d at 371; see also People v Duenas, 190 Misc 2d 801 [App Term, 2d Dept 2002]) to be guilty of Endangering the Welfare of a Child. To incur criminal liability, a defendant must engage in conduct “which [he] knows will present a likelihood’ of harm to a child” (id. at 372). The defendant “must simply be aware that his conduct is likely to result in harm to a child, whether directed at the child or not” (id. at 371-372, citing PL 15.05[2]; see also People v Simmons, 92 NY2d 829, 830 [1998]). Nevertheless, the harm as a result of the defendant’s actions must be likely and not merely possible (see id. at 371; see also Duenas, 190 Misc 2d at 803).

A criminal defendant may commit the offense of Endangering the Welfare of a Child through a single act or through multiple acts over a period of time (see People v Keindl, 68 NY2d 410, 421 [1986]). Indeed, a defendant may be guilty of the crime by performing “a series of acts, none of which may be enough by itself to constitute the offense but each of which when combined make out the crime” (id.; see also Simmons, 92 NY2d at 831; Cowley v People, 83 NY 464, 472 [1881]). Thus, simultaneously coexisting events and circumstances, when taken as a whole, may constitute the crime even if each circumstance, when taken in isolation, might not (see Hitchcock, 98 NY2d at 592; see also People v Hogle, 18 Misc 3d 715, 718-719 [Crim Ct, NY County 2007]).

In reviewing the charge for legal sufficiency, “each case is fact specific” (Johnson, 95 NY2d at 373) and the allegations must be analyzed in the context of “the whole incident” (Hogle, 18 Misc 3d at 871, citing People v Tichenor, 89 NY2d 769, 776 [1997]). The court must look to the “confluence of events and circumstances” (Hitchcock, 98 NY2d at 591), including both the defendant’s acts and his omissions (see Cowley, 83 NY at 472). Possessing loaded and unloaded firearms and ammunition which were fully accessible to children (Hitchcock, 98 NY2d at 591); engaging in domestic violence in front of children against their mother (Johnson, 95 NY2d at 373); repeatedly directing vulgar remarks at a toddler (Simmons, 92 NY2d at 831); and providing beer to teenaged boys (Bergerson, 17 NY2d at 403) are examples of conduct which courts have held likely to be injurious to the physical, mental or moral welfare of children.

Where the criminal charge is predicated on the theory that a parent has engaged in excessive corporal punishment 1, courts have sustained convictions where the child has
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suffered physical injury (see People v Nelson, 2 Misc 3d 133[A] [App Term 1st Dept 2004] [“evidence that defendant repeatedly struck his 13-year-old daughter with a belt, causing injuries, supported the conclusion that defendant knowingly engaged in conduct that was likely to be injurious to his daughter”]; see also People v Fields, 134 AD2d 365 [2d Dept 1987] [conviction upheld where defendant beat his three-year-old son with a belt for approximately 30 minutes, resulting in swelling, bruises and soreness]; cf. People v Phelps, 268 AD2d 692, 692-693 [3rd Dept 2000] [where the defendant inflicted physical injuries upon his daughter by striking her with his hand and/or a belt as a form of corporal punishment, Endangering the Welfare of a Child was an appropriate charge]). Courts have recognized that under Penal Law § 35.10(1) a parent may use physical force against a child when he reasonably believes it to be necessary to promote discipline or the child’s welfare (see Fields, 134 AD2dat 365; see People v Prue, 219 AD2d 873 [4th Dept 1995]; People v Thompson, 9 Misc 3d 1123[A] [City Ct, Westchester County 2005]). The force used must be reasonable, however, and the statute does not permit parents to “cruelly beat their children” (Prue, 219 AD2d at 873; Thompson, 9 Misc 3d at 1123[A]). Moreover, where a parent knowingly acts in a manner injurious to a child’s welfare by engaging in excessive corporal punishment causing physical injury to achild, he cannot justify those acts because he believed them necessary to promote the child’s welfare (see Fields, 134 AD2d at 365). Indeed, the infliction of physical injury against a child “is incompatible with the promotion of his physical welfare” (id.).

In contrast, where a parent or other caretaker engages in corporal punishment which does not cause physical injury to a child, courts have found insufficient proof of Endangering the Welfare of a Child (see Malte v State of New York, 125 AD2d 958 [4th Dept 1986] [evidence that fourth grade teacher picked up ten-year-old girl, placed her on the floor, straddled her legs and hit her backside approximately 12 times in response to her misbehavior “was an insufficient factual predicate” to establish the charge]; see also Thompson, 9 Misc 3d at 1123[A] [defendant who disciplined her children for bad behavior by hitting them with a belt without causing physical injury was found not guilty of the offense]).

Here, the defendant is alleged merely to have grabbed his three-year-old son by the arm and attempted to pull him into the bathroom. Since the complaint does not detail further the surrounding circumstances, it is impossible to determine the reason for the defendant’s actions. Regardless, the complaint neglects to describe how, or with what force, the defendant acted. Grabbing a child by the arm and attempting to pull him into a room, while perhaps not a preferred parenting method, is not in and of itself conduct likely to be injurious to the child’s physical, mental or moral welfare. Nor is it an act that a defendant would be aware is likely to be injurious to a child’s welfare. In the ordinary course of child rearing, parents on occasion will grab and pull small children by the arm in an effort to control their behavior. While some might argue that grabbing and pulling a child’s arm is a less than desirable means of discipline, such commonplace conduct, by itself, hardly warrants condemnation as a criminal act.
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Moreover, contrary to the People’s contention, the complaint does not establish that the child was physically injured as a result of the defendant’s actions. The allegation that the child suffered substantial pain to his arm is wholly conclusory and unsupported by any objective indication of injury (see Matter of Phillip A, 49 NY2d 198 [1980] [while the question of substantial pain is generally one for the trier of fact, who may consider, among other factors, the subjective reaction of the alleged victim, “there is an objective level below which the question [of substantial pain] is one of law.” Accordingly, evidence that the complainant was hit, experienced pain and exhibited a red mark was insufficient to establish substantial pain beyond a reasonable doubt]). The complaint fails to state that the child sustained so much as a bruise, redness or swelling. It does not even allege that the child was crying. The fact that the child was removed to a local Queens hospital does not suffice to prove that he was injured; this fact simply supports the inference that the child was examined for possible injury 2. An examination for possible injury does not permit the inference that an injury occurred. Furthermore, the allegation that the child suffered substantial pain is rank hearsay; the informant mother, Doreen Johnson, cannot attest, as a matter of first party knowledge, to what her child felt 3. Thus, a supporting deposition from the child, in the form of a stenographically recorded voir dire establishing his competence to testify and verifying that he suffered substantial pain as a result of the defendant’s actions is necessary to corroborate this allegation (see People v Claxton, 160 Misc 2d 550, 553-554 [Crim Ct, Bronx County 1994]; see also People v Soler, 144 Misc 2d 524, 527-529 [Crim Ct, NY County 1989]). No such voir dire has ever been filed.

In sum, the non-hearsay factual allegations of the complaint do not make out a prima facie case for Endangering the Welfare of a Child. The defendant’s motion to dismiss for facial insufficiency therefore is granted. The defendant’s remaining motions are moot.

This constitutes the decision and order of the Court.
Dated: June 24, 2010
Queens, New York
Elisa S. Koenderman, JCC

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Notes:
1. Although the complaint identifies the informant Doreen Johnson as Zyhare Johnson’s mother, it does not identify the defendant as the child’s father. Given that the defendant bears the same last name as both the mother and child, and that the incident is alleged to have occurred at night in the bathroom of what may reasonably be inferred to be a private residence, it further is reasonable to infer that the defendant is the child’s father.
2. The court notes that such an examination is often protocol for the Administration for Children’s Services in cases of suspected child abuse or neglect by a parent or guardian. Indeed, in their response, the People concede that the child was brought to the hospital “to be checked for injuries” (People’s Affirmation in Opposition, p. 5).
3. A supporting deposition from Doreen Johnson was filed with the complaint at arraignment.